Continuances in Motions for Summary Judgment

I don't want to sound like a broken record - as I have recently covered requesting continuances in motions for summary judgment - but I picked up a few useful nuggets in Christoffersen v. Soka University, Case No. G042935.  This is an unpublished case so it can't be cited, but I've written on several occasions that unpublished opinions are helpful for a variety of reasons.

In Christoffersen, the plaintiff, a university professor, sued Soka for religious and age discrimination after she was denied tenure.  She claimed the real reasons for the denial of her application were because she refused to join a Buddhist organization and she was then 62 years of age.

Soka filed a motion for summary judgment, which included several declarations.  Plaintiff never served any written discovery requests during the lawsuit (oops!).  Probably after receiving the motion, plaintiff attempted to conduct discovery, but it did not proceed smoothly.  Plaintiff filed an ex parte application to compel production of documents and to continue the summary judgment hearing.  Her then attorney filed a "declaration," and while it included an affirmation that the statements were made with personal knowledge, it was not executed under penalty of perjury.  The ex parte application was denied.  Since the plaintiff elected to proceed with her appeal without a reporter's transcript, the appellate court could not determine what was said by the trial court.  Very hard to show abuse of discretion under such circumstances.

Plaintiff made a second request for continuance in her opposition, but while her attorney signed a proper declaration, she made no mention of the need for additional evidence and a continuance.  The court granted the motion.  What is important to note:

• The court set forth what a declarant must show in requesting a continuance - which I won't repeat here - but it noted that the request must be supported by a "declaration" or an "affidavit" under oath.  The declaration initially submitted by plaintiff failed to have the necessary language  that it was executed under penalty of perjury and the reviewing court found she "failed to comply with the most basic aspect of the requirements of section 437c, subdivision (h)."


• A request for a continuance without a declaration or affidavit also fails to comply.  "Material in a memorandum of points and authorities or argument raised orally is insufficient to meet the requirements of section 437c, subdivision (h)."


• The requesting party must show how the discovery would provide "facts essential to justify opposition," rather than just conducting "exploratory" discovery.


• Plaintiff failed to show diligence.


• While the paperwork failed to adequately support the request for a continuance, the court concluded the trial court acted within its discretion.  "Moreover, Christoffersen's failure to provide this court with a reporter's transcript precludes a review of the trial court's comments at the hearing for an abuse of discretion."

The abuses of anti-SLAPP motions and sloppy briefs

In Grewal v. Jammu, the First Appellate District, Division Two, filed an Opinion on January 11, 2011, that makes our worst errors public.

Plaintiff Grewal filed a defamation action.  Defendants filed an anti-SLAPP motion three years after plaintiff's original complaint.  It was scheduled to be heard five days before the trial date.  The moving papers were over 206 pages long, and that page count did not even include a request for judicial notice of thousands of pages from three court files, including a 54-page court opinion.  Defendants claimed the complaint involved an "issue of public interest," while plaintiff argued otherwise.  The trial court concluded the first three causes of action did not involve an issue of public interest and that plaintiff had demonstrated a probability of prevailing on the fourth.  The defendants appealed.

The court affirmed the judgment below, finding that defendants essentially conceded plaintiff had met his burden under the anti-SLAPP statute.  It noted, "And we affirm with the observation that, however efficacious the anti-SLAPP procedure may be in the right case, it can be badly abused in the wrong one, resulting in substantial cost - and prejudicial delay.  It is time for plaintiff's case to be heard on the merits.  Perhaps it is also time for the Legislature to revisit whether a defendant losing an anti-SLAPP motion has an absolute right to appeal." (Emphasis added.)

What is important - at least to me - is the court's irritation with the legal documents filed below and on appeal.  For instance, it noted that the memorandum of points and authorities submitted in support of the anti-SLAPP motion did not have "argument headings," so the court had trouble determining defendants' arguments.  The defendants failed to identify the exact subsection that they claimed applied.  The court made some assumptions, which were confirmed at oral argument.  (Another good reasons never to waive oral argument.  The court may need your help in clearing up any confusion that you may have created.)

As to the defendants' brief, the court had this to say:

"The opening brief . . . is 72 pages long.  Following an abbreviated 'Statement of the Case,' the brief spends almost 21 pages on a 'summary of facts,' reciting the claimed facts from the Jammu defendants' perspective only, their 'summary of [plaintiff's] evidence and declarations' consisting of a grand total of 20 lines. Such advocacy is not to be condoned . . . Beyond that, the brief is not well organized, and lacks any meaningful or logical argument headings, jumping from arguments referring to 'issues of public interest' (Arguments IV and V) to 'free exercise of religion' (Argument VI) to 'limited public figure' (Argument VII) to 'public figure status."  (Arguments VIII, IX, and X.)  The brief is, in a word, unhelpful."

The court found the same problems existed with the 66-page reply brief, and in summation, that both briefs fail to "come to grips with the issue here."   The court opined that the anti-SLAPP motion should never have been brought, resulting in an appeal that is utterly lacking in merit.  The court concluded, "Something is wrong with this picture."  In the beginning, anti-SLAPP motions were brought - as intended - against big developers or companies that sought to silence and retaliate against the complaints of individual plaintiffs.  As the courts construed the anti-SLAPP provisions broadly, more and more lawsuits were caught up in this procedure,  including commercial speech cases.  While intended as an early screening device for bad lawsuits, these motions were frequently used to stop actions, including discovery, in their tracks, detour to an immediate appeal, and if successful, the winning party could recover attorneys fees.  The court noted the "explosion" of such motions and was especially critical of the right to an immediate appeal.  The court balanced the loss of the right of an appeal against the plight of the plaintiff, who must expend thousands of dollars on appeal, while the case is stopped in its tracks for around two years.  In conclusion, the court spent a considerable amount of time exploring the abuses of anti-SLAPP motions, including statistics, in the hope the Legislature would do something to fix the situation.

On a more personal note, the days of transparency in practicing law may well be over when the appellate court criticizes your briefs in a very public forum.  In fact, that public scolding may well be preserved for eternity.  And with clients spending more and more time researching their attorneys, is that something you would want your clients to see?

More on medical marijuana appeals

Now that there are 15 states that allow medical marijuana, and more to follow, one can imagine the confusion in engaging in  an activity sanctioned by state law but still deemed illegal under federal law.  The federal law in question is the Controlled Substances Act, which is found in 21 U.S.C.A. sec. 801, et seq..  Schedule I drugs, which include marijuana, are considered to have a high potential for abuse, "no currently accepted medical use in treatment in the United States, and there is "a lack of accepted safety for use of the drug or other substance under medical supervision."  (21 U.S.C.S. sec. 812((b)(1)(A) through (C).)   Legislators are rarely doctors with medical degrees, and sometimes one has to wait for the law to catch up with medicine.  Because marijuana is listed as an illegal drug, it is often difficult to conduct the sort of scientific tests that could establish its medicinal value.  (Well, maybe not so difficult for the U.S. Government.)

The official position of the U.S. Government is that marijuana has no medicinal use.  But if you turn to the National Cancer Institute, part of the National Institutes of Health, which is part of the Department of the Department of Health and Human Services, it has an official web site that addresses the use of medical marijuana in the treatment of cancer-related symptoms.  It notes cannabis has been used for medicinal purposes for thousands of years, and its chemical components (cannabinoids) activate specific receptors found throughout our bodies to produce pharmacological effects, which may have benefits in the treatment of cancer-related side effects.  These symptoms include "antiemetic effects, appetite stimulation, pain relief, and improved sleep."

The web site acknowledges that even though the government has denied it has medical value, marijuana was distributed to patients by the U.S. government under its Compassionate Use Investigational New Drug Program, established in 1978 and discontinued in 1992.  Even the Department of Veteran Affairs has approved marijuana for treating its vets in states where medical marijuana is legal.  The web site goes on to list studies involving anti-tumor effects, protection against the development of some tumors, appetite stimulation, pain relief and an anti-inflammatory mechanism.  The site also notes that "Cannabinoids have a favorable drug safety profile," are less addictive than prescribed drugs or substances of abuse, and have mild withdrawal symptoms compared to opiates or benzodiazepines, and even those symptoms dissipate after a few days.

If you take a look at http://articles.cnn.com/2009-05-18/justice/government.marijuana.garden_1_marijuana-drug-abuse-cameras?_s=PM:CRIME, then you might get a glimpse at what is billed the "nation's only legal pot garden," because it is the government's "cannabis drug repository."   This farm exists as the result of a contract between the National Institute of Drug Abuse and the University of Mississippi to cultivate the marijuana and send it to licensed facilities across the country for research.  As noted by celebrity Montel Williams in a recent episode of the Dr. Oz show, the government sends out a canister to several patients each month, and has done so for a number of years, while patients across the country run the risk of drug prosecution by the federal government even though the patient's state may find its use is legal.

But the government persists in arguing that marijuana is a dangerous substance, and if legalized, even for seriously ill patients, then the youth will become more vulnerable to using it.  Hmmm, interesting argument . . . so a seriously ill patient who might benefit from medical marijuana and obtains a doctor's recommendation for the patient's treatment, should be denied medical marijuana so that youths might not be tempted by marijuana?  Wouldn't the same argument apply to Vicodin or Oxycontin?  Does that mean the patient should be doomed to suffer and sacrifice his or her well-being to save a young person somewhere from failing prey to the temptations of marijuana?  Something is wrong here.

At the conclusion of his show, Dr. Oz summed up his position that medical marijuana should be used to give patients their lives back, not to take them away from life.  But  according to the government, that patient's right to medical treatment and to be free of pain deserves less recognition than saving our youths from a drug with proven medical benefits, with a lot less side effects and addictive qualities than prescribed drugs.

The reason I work on medical marijuana appeals

Yesterday I attended a Career Fair at Whittier Law School.  It's been almost 34 years since I was a law student.  A lot has changed, especially the percentage of women.  When I attended, women comprised only 10% of the classes, so it is a real victory for everyone to see more women in law school.

The students walked around the room and were able to visit with attorneys according to their specialty or law firm.  Needless to say, appellate attorneys were not high on their list, although a lot of students asked for advice on writing briefs and oral argument.  I was very happy to help them.  There were a handful of students who were interested in appellate law, but a much larger group was interested in why I made a decision to practice in this area and how I developed my practice.  They also asked about the types of cases I worked on.

One area of my practice always gets a smile and that is handling civil appeals dealing with medical marijuana cases.  At first, my colleagues would smirk when I mentioned these cases and sooner or later would voice an opinion that usually went like this:  "Isn't it true that medical marijuana is really a hoax and a means to obtain drugs for people who simply want to get loaded?"   Quite often this question is asked over a glass of wine or alcoholic beverage that the speaker has ordered "to take off the edge."

Here's my response:  I didn't think too much about marijuana for years.  About two years ago, my boyfriend was diagnosed with esophageal cancer, stage III, and we were looking at months of chemo, radiation, and surgery.   Not to mention the painful recovery from all of this life-saving medicine.  He started on radiation, but the terrible effects did not hit him until later because radiation treatments are cumulative.  Then he started on the chemo and ran around with a container that gave him a constant infusion.  That is when the real suffering began.  He was always sick and found it hard to keep food down.  In fact, he had trouble keeping down the pills that were meant to ease his symptoms.  He started losing weight but still had no appetite.  The surgery was a big trauma for his body and he ended up losing over 50 lbs.!  Medical marijuana helped with this symptoms, quieting his stomach and enhancing his appetite.  It also allowed him to sleep and helped with the pain that had become a constant companion.  He did not get loaded nor did he have a good time on his marijuana.

A few years earlier, our young neighbor, who had been on the planet for all of eight years, was diagnosed with brain cancer.   At his tender age, he went through radiation, chemo, and surgery.  The treatment, which was meant to save his life, almost killed him several times.  The chemo was so hard on him that he had to be hospitalized just to be treated.  He shrunk away and he too lost his appetite even though food was necessary to replenish him.  His family is very religious and belongs to a supportive church, but medical marijuana still raises a few eyebrows.  He seemed to recover, but then a few years ago, about the time my boyfriend became ill, his cancer returned.  This time the family resorted to medical marijuana in the form of a tincture.  It helped in a way that the traditional medications did not, and it was a natural substance that did not have any side effects.  The family was a little concerned about what their church would think, but of course, the health of your child will always win out.  And now that he is fourteen years of age, no one can say that he is just doing this to get loaded.  On the contrary, he is lucky if he can get through the day without throwing up and losing weight.

Of course, these are the more serious cases.  People use medical marijuana for a variety of ills, some of them very painful, while others may have a use that causes society to question the need for marijuana.  For instance, if someone takes it for anxiety or insomnia, and it relieves those symptoms, should their needs be taken less seriously?  And if someone with those same symptoms opts to use a natural substance in lieu of sleeping pills and anti-depressants, which have many side effects, can we honestly criticize that choice?  One of the complaints I hear from medical marijuana patients is that they did not want to use Vicodin or Oxycontin because it caused too many side effects, was addictive, and made them into zombies.

Some of us fight for the right to use marijuana without criminal penalties (which I support), but at this point, I am willing to fight this battle so that sick and injured people can find some relief in using marijuana.

A case on genital herpes and special verdict forms

In Behr v. Redmond (2011), No. E048333, plaintiff Patricia Behr sued defendant Thomas Redmond for damages caused by the transmission of genital herpes.  Using a special verdict, the jury found Behr had suffered compensatory damages of over $4 million, including $2.5 million for future medical expenses.  The jury also awarded Behr punitive damages of $2.75 million.  Redmond appealed, alleging a number of errors, including insufficiency of evidence to show Behr contracted herpes prior to Redmond's disclosure to her of the disease and a claim that the special verdict was fatally defective.

Redmond learned he had genital herpes in 1975 and knew the disease was contagious, although the risk of infection varied depending on whether he was experiencing an outbreak.  Behr and Redmond met in 2001 and their relationship progressed to a sexual one, although he did not tell her had herpes until February 12, 2004.  When Redmond decided he was not having an outbreak, he assured it was okay to have sex, which they did on Valentine's Day.  After they returned from a trip to Spain in April 2004, the relationship apparently ended.  Behr later realized in February 2005 that she had herpes, although she probably had her first outbreak in March 2004.

Behr filed a lawsuit, alleging  fraud, intentional and negligent infliction of emotional distress, and negligence.  The jury returned a special verdict in Behr's favor.  The jury verdict asked whether Redmond informed Behr prior to having sexual intercourse that he was infected, to which the jury responded no.  The jury form also asked the jury to specify the amount of damages.  The form also included a question whether Redmond fraudulently concealed his herpes before sexual conduct, to which the jury responded in the affirmative.

The appellate court affirmed that "People who know or should know they have genital herpes generally have a duty to avoid sexual contact with unaffected persons or to warn potential partners before sexual contact occurs."  This duty exists even if the person is not experiencing an outbreak, because the risk of infection is still present.  Here, Redmond made a disclosure and the parties still had sex.  He  argues he cannot be liable if Behr contracted herpes after the date of disclosure and he argued there was no substantial evidence that Behr contracted herpes before his disclosure.

The court rejected his argument.  After disclosure, Redmond said it was okay to have sex because he was not having an outbreak.  These assurances supported a finding that he negligently or intentionally misled Berk into believing there was no risk of getting herpes.  Because of these assurances, the court found the jury could reasonably conclude Redmond's conduct constituted negligence and fraudulent concealment, and it did not matter at what point in time the disease was transmitted.

The court held that any defect in the special verdict as to the timing of the transmission was waived because Redmond failed to object.  "'If the verdict is ambiguous the party adversely affected should request a more formal and certain verdict.  Then, if the trial judge has any doubts on the subject, he may send the jury out, under proper instructions, to correct the informal or insufficient verdict.'"  Since Redmond believed the timing of the infection was an important fact in determining liability, it was incumbent on him to ensure that findings on this issue were included in the verdict.  Behr claimed that Redmond's attorney prepared the verdict form and both stipulated to its use.  Redmond also failed to seek any correction or clarification of the verdict at any time.   Thus, this objection was waived, but considering the fact that the court found he could be still be liable after disclosure if he assured Behr it was okay to have sex, it probably would not have changed the outcome.

On the flip side, the court found that the special verdict did not support a judgment for fraud by misrepresentation because the jury was not requested to make special findings as to whether Redmond made any affirmative misrepresentation.  "When a special verdict is used and there is no general verdict, we will not imply findings in favor the prevailing party . . . If a fact necessary to support a cause of action is not included in such a special verdict, judgment on that cause of action cannot stand."  Thus, the court reversed the judgment as to the cause of action for fraudulent misrepresentation, reduced the compensatory damages, modified the trial court's order regarding costs, but it refused to disturb the punitive damages award.